Mt Arthur Coal Pty Limited T/A Bhp Mt Arthur Coal
[2024] FWC 2616
•23 SEPTEMBER 2024
| [2024] FWC 2616 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Mt Arthur Coal Pty Limited T/A Bhp Mt Arthur Coal
(AG2024/3637)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 23 SEPTEMBER 2024 |
Application for orders under s 318 of the Fair Work Act 2009 (Cth)
The Mt Arthur coal mine (Mine) is owned and operated by the BHP Group. The Mine is located in the Hunter Valley, New South Wales.
Mt Arthur Coal Pty Limited (Mt Arthur) is an entity within the BHP Group which employs employees to work at the Mine.
Mt Arthur seeks orders under s 318(1) of the Fair Work Act 2009 (Cth) (Act) in relation to the transfer of employees who are, or were previously, employed by BHP WAIO Pty Ltd (ABN 18 008 852 784) formerly BHP Billiton WAIO Pty Ltd (WAIO) to become employed by Mt Arthur at the Mine. These employees are, or were, employed by WAIO at an iron ore mine located in Newman, Western Australia.
The orders sought by Mt Arthur relate to Ms Katrina Booth and other unnamed employees who may in the future be in a similar situation to Ms Booth. Ms Booth currently works as a Production Technician (Dump Truck Operator) at WAIO’s iron ore mine in Newman, Western Australia. Ms Booth has agreed to move to the Hunter Valley to take up employment with Mt Arthur in the role of Production Operator at the Mine.
On the filing of Mt Arthur’s application for orders pursuant to s 318 of the Act, I gave Ms Booth an opportunity to be heard in relation to the application. Ms Booth informed the Commission that she had “nothing to add” in relation to this matter.
I am not prepared to make the orders sought by Mt Arthur. I can only make such orders if, among other things, I am satisfied that there is a transfer of business within the meaning of s 311 of the Act. A transfer of business cannot occur within the meaning of s 311 unless the work the transferring employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer (s 311(1)(c)). In the present case, the work Ms Booth will do for Mt Arthur is not the same, or substantially the same, as the work she does for WAIO, particularly having regard to the location of the two workplaces and the fact that two different types of mineral assets are involved (black coal rather than iron ore), involving distinct mining processes (Crown Sydney Gaming Pty Limited v United Workers' Union [2022] FCA 97 at [14]).
As to other employees who may move to the Mine in the future, I would need to understand all the relevant facts and circumstances associated with such a move before deciding any application under s 318 of the Act in relation to such employees.
For the reasons given, the application for orders under s 318 of the Act is dismissed.
DEPUTY PRESIDENT
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